Dick Cheney May Be Guilty of War Crimes

The Guardian reports today that Lawrence Wilkerson, Colin Powell's chief of staff from 2002 to 2005, told the BBC that Vice-President Dick Cheney could be open to prosecution for war crimes because of his leading role in urging the scrapping of virtually all human rights protections for detainees in U.S. custody, up to and including the advocacy of torture.

Mr Wilkerson said that in an internal administration debate over whether to abide by the Geneva conventions in the treatment of detainees, Mr Cheney led the argument "that essentially wanted to do away with all restrictions."

Asked whether the vice-president was guilty of a war crime, Mr Wilkerson replied: "Well, that's an interesting question -- it was certainly a domestic crime to advocate terror and I would suspect that it is ... an international crime as well." In the context of other remarks it appeared he was using the word "terror" to apply to the systematic abuse of prisoners.

The argument that Cheney is guilty of war crimes is bolstered by the two Justice Department memos that Jane Mayer recently wrote about in The New Yorker. The White House has not let anyone outside the inner circle see these memos; even the Senate Intelligence Committee was kept in the dark about them.

Here's what Mayer writes about the memos:

The Bush Administration has resisted disclosing the contents of two Justice Department memos that established a detailed interrogation policy for the Pentagon and the C.I.A. A March, 2003, classified memo was "breathtaking," the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous "enhanced" interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.

For nearly a year, Democratic senators critical of alleged abuses have been demanding to see these memos. "We need to know what was authorized," Carl Levin, a Democrat from Michigan, told me. "Was it waterboarding? The use of dogs? Stripping detainees? . . . The refusal to give us these documents is totally inexcusable." Levin is a member of the Senate Intelligence Committee, which is supposed to have an oversight role in relation to the C.I.A. "The Administration is getting away with just saying no," he went on. "There's no claim of executive privilege. There's no claim of national security -- we've offered to keep it classified. It's just bullshit. They just don't want us to know what they're doing, or have done."

Waterboarding has gotten a lot of attention recently; it's reportedly one of the C.I.A.'s favored interrogation methods. And according to the Bush administration definition of torture, it isn't torture.

This goes back to the infamous August, 2002, memo from Alberto Gonzales to the president.

[The memo] argued that a coercive technique was torture only when it induced pain equivalent to what a person experiencing death or organ failure might suffer. By implication, all lesser forms of physical and psychological mistreatment -- what critics have called "torture lite" -- were legal. The memo also said that torture was illegal only when it could be proved that the interrogator intended to cause the required level of pain. And it provided interrogators with another large exemption: torture might be acceptable if an interrogator was acting in accordance with military "necessity." A source familiar with the memo's origins, who declined to speak on the record, said that it "was written as an immunity, a blank check." In 2004, the "torture memo," as it became known, was leaked, complicating the nomination of Alberto R. Gonzales to be Attorney General; as White House counsel, Gonzales had approved the memo. The Administration subsequently revised the guidelines, using language that seemed more restrictive. But a little-noticed footnote protected the coercive methods permitted by the "torture memo," stating that they did not violate the "standards set forth in this memorandum."

Under the guidelines set forth in this memo, waterboarding, in order to be considered torture, would have to cause "pain" equivalent to what a person who is dying or experiencing organ failure might feel. Is the sensation of drowning "pain"? Even if the answer were yes, in order to be defined as torture, it would have to be proved that the C.I.A. interrogator "intended" to cause the level of pain experienced when death or organ failure occurs. And even then, if the authorities decided that the waterboarding was "justified" by "military necessity," it would not be actionable, even if it were acknowledged to be torture.

But James Ross, a legal expert at Human Rights Watch, said such a narrow definition was at odds with international norms.

"Waterboarding is clearly a form of torture. It has been used since the Inquisition. It was a well-known torture technique in Latin America," Mr Ross said.

Yeah, well, we know who taught the Latin Americans how to use those "harsh interrogation techniques," don't we?